Sibling rivalry is a fact of life but when it comes to a disputed Will the stakes can be high, as seen in the case of McCabe v McCabe [2015].
McCabe v McCabe
Background
Mrs McCabe died in November 2011 aged 82. A widow with two sons – Timothy and Stephen – she made a Will dated 2007 which broadly divided her Estate equally between them.
But in 2011 Mrs McCabe made a new Will, disinheriting Timothy in favour of Stephen.
Timothy subsequently claimed the 2011 Will was invalid because:
- It had not been duly executed;
- Mrs McCabe had not known and approved its contents; and
- Mrs McCabe had not had testamentary capacity to make a Will at the time because she was delusional.
Some further background information is necessary. For many years Stephen and Timothy did not get on and this was a source of anguish for Mrs McCabe.
Timothy was also a serving Police Officer and was suspicious of Stephen’s conduct in dealing with Mrs McCabe’s finances during her lifetime, so reported him to his colleagues. This greatly upset Mrs McCabe and would underpin her decision to disinherit Timothy.
From the second half of 2009, Mrs McCabe was suffering from cognitive impairment (Alzheimer’s disease) but when the solicitor who took instructions for the 2011 Will saw her, he took the view that she did have the requisite capacity.
However, anticipating a challenge from Timothy, the solicitor also arranged for Mrs McCabe’s Psychogeriatrician to witness the Will.
Legal proceedings
Timothy’s case was that his mother was elderly and in poor health, having recently undergone surgery for cancer. She was suffering from Alzheimer’s disease but as recently as early 2011 made it clear she wanted her Estate divided equally.
The fact that Stephen had a hand in arranging the appointment with the solicitor to draw up the new Will was also indicative in Timothy’s mind of something untoward.
The Judge found that whilst Mrs McCabe was suffering from Alzheimer’s disease and her 2011 Will did reflect a radical departure from her previous Will, it was nevertheless valid. Of the three allegations, the Court found:
- One of the witnesses to the 2011 Will (who said he did not sign it before Mrs McCabe) had merely forgotten he had;
- Stephen’s arranging the trip to the solicitor was more out of practicality than anything else. Both the solicitor and the Psychogeriatrician both agreed she appeared to know and approve the contents of her Will; and
- Although the solicitor had not set out what the legal test for testamentary capacity was for the benefit of the Psychogeriatrician, nevertheless Mrs McCabe still had capacity to make the 2011 Will and that she actively participated in formulating its provisions. Mrs McCabe believed Timothy had instigated the police investigation and that belief was justified by what happened.
The Judge also posted a word of caution about making claims regarding the validity of a Will and stated:
“If judges were too ready to accept such contentions, it would risk undermining what may be regarded as a fundamental principle of English law, namely that people should in general be free to leave their property as they choose, and it would run the danger of encouraging people to contest wills, which could result in many estates being diminished by substantial legal costs.”
In Timothy’s defence, the judge commented the 2011 Will was suspicious but this claim could have been avoided altogether had a proper evaluation of Mrs McCabe’s testamentary capacity been undertaken at the time.
This may have not prevented a claim on the basis the Will was not validly executed but it would certainly have narrowed the issues, leading to a considerable saving in costs.
How Nelsons can help
Kevin Modiri is a Partner in our Dispute Resolution team, specialising in inheritance dispute claims.
If you have any questions in relation to the subjects discussed in this article, please contact Kevin or another member of our expert team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online form.